Orin F. Farnsworth and Mary L. Farnsworth - Page 14




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               In the case at hand, petitioners have failed to convince us            
          of a specific amount that was withheld as retentions.  We know              
          that the contractual terms were not followed, that no reliable              
          documentary evidence is available to establish the true retention           
          amounts, and that Mr. Farnsworth’s testimony concerning the                 
          retention amounts satisfies neither the rules of arithmetic nor             
          the laws of probability.                                                    
               More importantly, even if petitioners had established the              
          retention amounts, petitioners have failed to establish by a                
          preponderance of the evidence that the retention amounts were               
          included in Mr. Farnsworth’s taxable income.  In order for the              
          retention amounts to give Mr. Farnsworth a basis in the DMAA,               
          petitioners would have to establish that Mr. Farnsworth reported            
          the retention amounts as income for the years in which they were            
          withheld; otherwise the retention amounts would not constitute a            
          cost of his interest in the DMAA that would be taken into account           
          for income tax purposes.  See sec. 1012 (basis of property is               
          cost); Gertz v. Commissioner, 64 T.C. 598 (1975) (disallowing bad           
          debt deduction for unpaid wages that were never included in                 
          income).                                                                    
               Petitioners offered no evidence, other than Mr. Farnsworth’s           
          self-serving testimony, to show that Mr. Farnsworth previously              
          included the retention amounts in income.                                   








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